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                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-15327
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 1:14-cv-22768-MGC



CARLOS ANTONIO ORTEGA BONILLA,

                                                          Plaintiff-Appellant,

                                 versus

UNITED STATES OF AMERICA,
ANDREA HOFFMAN,

                                                       Defendants-Appellees.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                            (June 20, 2016)
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Before TJOFLAT, HULL and JILL PRYOR, Circuit Judges.

PER CURIAM:

       Plaintiff Carlos Antonio Ortega Bonilla appeals the district court’s dismissal

of his complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure for

failure to state a claim. Bonilla asserted claims under the Federal Tort Claims Act

(“FTCA”) and Bivens 1 against the United States and Assistant United States

Attorney Andrea Hoffman (“the Defendants”) arising out of the arrest, detention,

and prosecution of Bonilla for his alleged involvement in an international drug

smuggling operation. After review, we affirm.

                           I.      BACKGROUND FACTS

       We recount below the relevant facts by accepting the allegations in the

complaint as true and construing them in the light most favorable to Bonilla. Fin.

Sec. Assurance, Inc. v. Stephens, Inc., 

, 1282 (11th Cir. 2007).

A.     Bonilla’s Background and Social Status

       Bonilla, a 64-year-old Colombian citizen, was a well-respected member of

the Colombian community. Bonilla served as a pilot for Colombia’s national

airline for over 25 years. Thereafter, Bonilla assumed high-ranking positions for

the Colombian government, including serving as the Director of Air Safety for the


       1
         Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

, 91 S.
Ct. 1999 (1971) (establishing that a plaintiff may bring suit directly under the Constitution
against federal officers in their individual capacity for constitutional violations).
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Civil Aviation Authority of Colombia. In 2004, Bonilla retired from his position

as Director, began working as an aviation consultant, and also started a part-time

business brokering the sale and lease of airplanes.

B.     Investigation, Arrest, Detention, and Prosecution of Bonilla

       At some point prior to June 2012, the United States initiated an investigation

into an international drug smuggling operation occurring in Colombia. While the

investigation was a “highly coordinated” effort between the Drug Enforcement

Administration (“DEA”) and Colombian law enforcement, the United States was

“in charge.” As part of the investigation, DEA agents made monthly payments to

Colombian narcotics officers and paid them “bonuses” for their investigative

efforts.

       On June 28, 2012, Bonilla was extradited to a prison in Florida where a

DEA agent arrested Bonilla on suspicion of drug-smuggling activity. The United

States accused Bonilla of selling airplanes to drug traffickers and claimed that

phone wiretaps proved as much. However, the apparently incriminating wiretaps

actually demonstrated that Bonilla refused to sell airplanes to people that he

suspected were drug traffickers and, according to Bonilla, affirmatively established

his innocence. Bonilla alleged that “the Defendants maliciously and recklessly

arrested, prosecuted and detained [him] due to his alleged involvement in a




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complex drug smuggling operation . . . in spite of [their] knowledge that he was

innocent of any wrongdoing.”

      The United States Attorney for the Southern District of Florida delegated

responsibility for prosecuting Bonilla to Defendant Andrea Hoffman, an Assistant

United States Attorney. Bonilla alleged that prosecutor Hoffman unlawfully

withheld exculpatory phone wiretaps despite his repeated requests for the

disclosure of such evidence. Bonilla also alleged that Hoffman unlawfully

withheld evidence proving that the DEA paid “bonuses” to individual Colombian

narcotics police officers for their investigative efforts. According to Bonilla,

Hoffman tried to “create a case against [him] that simply did not exist,” going so

far as to represent that a secret witness existed who would testify against him.

      In August 2012, the United States dismissed all charges against Bonilla.

Bonilla’s arrest and detention negatively impacted his family life, mental health,

credibility, reputation, and ability to secure employment.

                        II.    PROCEDURAL HISTORY

A.    The Complaint

      On July 28, 2014, Bonilla filed a counseled, nine-count complaint in federal

district court against the United States of America and Hoffman. Bonilla brought

the following claims against only the Defendant United States pursuant to the

FTCA: (1) false arrest (Count I); (2) false imprisonment (Count II); (3) malicious


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prosecution (Count III); (4) abuse of process (Count IV); (5) intentional infliction

of emotional distress (Count V); and (6) negligence (Count VI).

       Bonilla brought the following claims against only Defendant Hoffman

pursuant to Bivens: (1) Constitutional claim under the Fifth Amendment (Count

VII); (2) Constitutional claim under the Fourth Amendment (Count VIII); and

(3) Constitutional claim for Brady 2 Rule violation (Count IX).

B.     Dismissal of the Complaint

       In a September 20, 2015 order, the district court granted the Defendants’

joint motion to dismiss the complaint for failure to state a claim. The district court

concluded that Bonilla’s FTCA claims against the Defendant United States were

barred by the doctrine of sovereign immunity because they were based on the

actions of Hoffman, a federal prosecutor, who does not qualify as an “investigative

or law enforcement officer” within the meaning of 28 U.S.C. § 2680(h). The

district court also concluded that Defendant Hoffman was entitled to absolute

immunity from Bonilla’s Bivens claims because those claims arose from

Hoffman’s performance of her prosecutorial duties. Bonilla appeals the district

court’s September 20, 2015 dismissal order.




       2
        Brady v. Maryland, 

, 

(1963) (holding that a defendant’s due
process rights are violated when the prosecution suppresses material evidence favorable to the
defendant).
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                               III.   DISCUSSION

A.    Standard of Review

      We review de novo the district court’s grant of a Rule 12(b)(6) motion to

dismiss for failure to state a claim. Cinotto v. Delta Air Lines Inc., 

,

1291 (11th Cir. 2012). When evaluating a motion to dismiss, a court looks to see

whether the complaint contains sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face. Surtain v. Hamlin Terrace Found., 

, 1245 (11th Cir. 2015). This plausibility standard is met when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged. 

that offers labels and conclusions or a formulaic recitation of

elements of a cause of action will not do.” Ashcroft v. Iqbal, 

, 678,

, 1949 (2009) (quotation marks omitted). Indeed, a complaint’s

factual allegations must be enough “to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly, 

, 555, 

, 1965

(2007). “[C]onclusory allegations, unwarranted deductions of facts or legal

conclusions masquerading as facts will not prevent dismissal.” Oxford Asset

Mgmt., Ltd. v. Jaharis, 

, 1188 (11th Cir. 2002).




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B.    FTCA Claims against the United States

      On appeal, Bonilla argues that the district court erred by dismissing his

FTCA claims on sovereign immunity grounds. We disagree.

      “Absent a waiver, sovereign immunity shields the Federal Government and

its agencies from suit.” FDIC v. Meyer, 

, 475, 

, 1000

(1994). The FTCA was designed primarily to remove the sovereign immunity of

the United States from suits in tort. Millbrook v. United States, 569 U.S. ___, ___,

, 1443 (2013). The United States waives sovereign immunity in

§ 1346(b) of the FTCA, which provides:

      [T]he district courts . . . shall have exclusive jurisdiction of civil
      actions on claims against the United States, for money damages, . . .
      for injury or loss of property, or personal injury or death caused by the
      negligent or wrongful act or omission of any employee of the
      Government while acting within the scope of his office or
      employment, under circumstances where the United States, if a
      private person, would be liable to the claimant in accordance with the
      law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). However, 28 U.S.C. § 2680(h) creates an exception to the

waiver of sovereign immunity, as well as an exception to that exception, by

providing that the waiver in § 1346(b) “shall not apply to”:

      [a]ny claim arising out of assault, battery, false imprisonment, false
      arrest, malicious prosecution, abuse of process, libel, slander,
      misrepresentation, deceit, or interference with contract rights:
      Provided, That, with regard to acts or omissions of investigative or
      law enforcement officers of the United States Government, the
      provisions of this chapter and section 1346(b) of this title shall apply


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      to any claim arising . . . out of assault, battery, false imprisonment,
      false arrest, abuse of process, or malicious prosecution.

28 U.S.C. § 2680(h). Thus, while § 2680(h) carves out an exception to the waiver

of sovereign immunity with respect to the commission of certain enumerated

intentional torts, the United States may still be liable for those torts when federal

“investigative or law enforcement officers” commit them. See id.; see also

Nguyen v. United States, 

, 1260 (11th Cir. 2009). Section 2680(h)

defines an “investigative or law enforcement officer” as “any officer of the United

States who is empowered by law to execute searches, to seize evidence, or to make

arrests for violations of Federal law.” 28 U.S.C. § 2680(h).

      Here, the district court properly dismissed Bonilla’s FTCA claims under the

doctrine of sovereign immunity. All of Bonilla’s FTCA claims maintain causes of

action for intentional torts from which the United States is immune. Bonilla’s false

arrest, false imprisonment, malicious prosecution, and abuse of process claims are

barred under the plain language of § 2680(h). See 

negligence and emotional distress claims, though not enumerated in § 2680(h), are

still barred because they are derived from the same conduct that forms the basis of

the enumerated causes of action. See Metz v. United States, 

, 1534

(11th Cir. 1986) (“[A] cause of action which is distinct from one of those excepted

under § 2680(h) will nevertheless be deemed to ‘arise out of’ an excepted cause of



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action when the underlying governmental conduct which constitutes an excepted

cause of action is ‘essential’ to plaintiff's claim.”).

       Bonilla nevertheless argues that the waiver of sovereign immunity for

intentional torts committed by “investigators or law enforcement officers” applies

to this case in two ways. First, Bonilla contends that Hoffman’s conduct “went far

beyond her prosecutorial duties such that she was acting in the role of an

investigative or law enforcement officer for purposes of the FTCA.” According to

Bonilla, the United States does not enjoy sovereign immunity where a federal

prosecutor commits certain tortious acts in an investigative or law enforcement

capacity.

       With respect to Hoffman’s conduct, prosecutors do not qualify as

“investigative or law enforcement officer[s]” within the meaning of 28 U.S.C.

§ 2680(h) as they are not empowered to execute searches, seize evidence, or make

arrests. See 28 U.S.C. § 2680(h); 28 U.S.C. § 547 (setting out the duties of U.S.

Attorneys). Nor does the complaint allege that Hoffman performed any of these

functions. Accordingly, based on the allegations in this case, Hoffman does not

qualify as an “investigative or law enforcement officer” under the plain meaning of

§ 2680(h), and sovereign immunity precludes FTCA liability arising from her

allegedly tortious conduct.




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      Second, Bonilla argues that, regardless of Hoffman’s conduct, the complaint

sets forth detailed allegations of tortious misconduct by DEA agents and other

federal law enforcement officers. According to Bonilla, the United States does not

enjoy sovereign immunity where DEA agents, who are clearly law enforcement

officers, commit certain tortious acts.

      With respect to the DEA’s conduct, we have no doubt that DEA agents

qualify as “federal investigative or law enforcement officer[s]” under § 2680(h),

which means that the United States does not enjoy sovereign immunity from

claims based on the DEA’s commission of certain intentional torts. See 

. However, the complaint does not contain sufficiently specific

allegations relating to the DEA’s actual conduct to state an FTCA claim against the

United States.

      The complaint alleges numerous instances of misconduct by Hoffman and

the United States in general, but contains very few allegations concerning the

actual conduct of the DEA or other federal law enforcement officers. Indeed,

Hoffman is the only agent of the United States who the complaint ever identifies

by name. All we can glean from the complaint is that unidentified DEA agents

(1) coordinated a drug-smuggling investigation with Colombian law enforcement,

(2) arrested Bonilla on June 28, 2012, upon suspicion of drug-smuggling, (3) paid

“bonuses” to Colombian narcotics officers for their investigative efforts, and


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(4) received from Bonilla’s attorney and Colombian agents some evidence tending

to exculpate Bonilla. These allegations, accepted as true, do not establish the

unlawfulness of Bonilla’s arrest and detention and, therefore, do not state a claim

for false arrest, false imprisonment, or any of the other related causes of action that

form the basis of Bonilla’s FTCA claims. 3 Additionally, none of Bonilla’s FTCA

counts contain any allegations even mentioning the conduct of the DEA or other

federal law enforcement officials.

       At most, one could speculate that Bonilla’s allegations concerning the

“United States” and “U.S. authorities” refer to the actions of the DEA or other

federal law enforcement officials. However, complaints that do not “raise a right

to relief above the speculative level” will not survive dismissal. See Bell Atl.

, 127 S. Ct. at 1965.

       Ultimately, we are left with nothing more than Bonilla’s vague, threadbare,

and conclusory allegations concerning the conduct of the DEA, which do not state

an FTCA claim against the United States that is plausible on its face. See 

; Oxford Asset 

.

       In sum, under § 2680(h), sovereign immunity precludes FTCA liability

arising from the tortious conduct alleged in the complaint. Hoffman is not an

       3
         Bonilla’s allegation that his attorney and criminal investigator repeatedly provided the
DEA with evidence that “unequivocally proved [his] innocence” amounts to nothing more than a
“legal conclusion[] masquerading as fact[]” that does not prevent dismissal. Oxford Asset

.
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“investigative or law enforcement officer,” and while a DEA agent is, the

allegations regarding the DEA’s conduct is not sufficiently specific to state a

claim. Because the complaint does not state a claim against the United States

based on the conduct of an “investigative or law enforcement officer,” the

“investigative or law enforcement officer” exception in § 2680(h) does not apply

and the United States enjoys sovereign immunity from Bonilla’s FTCA claims.

C.    Bivens Claims against Hoffman

      On appeal, Bonilla also argues that the district court erred by dismissing his

Bivens claims against Hoffman under the doctrine of absolute immunity. Bonilla

argues that absolute immunity does not protect Hoffman because her misconduct

exceeded the scope of her duties as an Assistant United States Attorney. We

disagree.

      “Prosecutors are . . . entitled to absolute immunity from damages for acts or

omissions associated with the judicial process, in particular, those taken in

initiating a prosecution and in presenting the government’s case.” Bolin v. Story,

, 1242 (11th Cir. 2000). “Such absolute immunity extends to a

prosecutor’s acts undertaken … in preparing for the initiation of judicial

proceedings or for trial, and which occur in the course of his role as an advocate

for the State.” Jones v. Cannon, 

, 1281 (11th Cir. 1999) (quotation

marks omitted) (alteration in original).


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      “[A]bsolute immunity does not necessarily shield a prosecutor from liability

when he is performing a function that is not associated with his role as an advocate

for the state.” Mastroianni v. Bowers, 

, 1366 (11th Cir. 1999). For

example, absolute immunity is not available where a prosecutor performs an

investigative function. See Rivera v. Leal, 

, 1353 (11th Cir. 2004).

“A prosecutor functions as an investigator when he searches for the clues and

corroboration that might give him probable cause to recommend that a suspect be

arrested.” 

omitted).

      Acts protected by absolute immunity include a prosecutor’s “professional

evaluation of the evidence assembled by the police.” Buckley v. Fitzsimmons, 

, 273, 

, 2615 (1993). Absolute immunity also extends to

the “task of evaluating the credibility of the alleged exculpatory information,”

which “no doubt requires the exercise of prosecutorial discretion.” Long v. Satz,

, 1279 (11th Cir. 1999) (quotation marks omitted). Additionally,

“[i]njury flowing from a procedural due process violation . . . that results from a

prosecutor’s failure to comply with the Brady rule cannot be redressed by a civil

damages action against the prosecutor . . . because the prosecutor is absolutely

immune from such liability.” Porter v. White, 

, 1305 n.8 (11th Cir.

2007).




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      Here, the district court properly dismissed Bonilla’s Bivens claims under the

doctrine of absolute immunity. The substance of Bonilla’s Bivens claims, as

alleged in the complaint, are essentially twofold: (1) Hoffman allegedly violated

Bonilla’s Fourth and Fifth Amendment rights by ignoring exculpatory evidence

and detaining him despite knowledge of his actual innocence, and (2) Hoffman

allegedly violated Bonilla’s Constitutional rights under Brady by failing to disclose

exculpatory evidence during the investigative phase. Hoffman enjoys absolute

immunity from both types of Bivens claims.

      Bonilla’s first species of Bivens claim concerns the very type of

prosecutorial functions traditionally protected by absolute immunity. Bonilla seeks

recovery from Hoffman based on her alleged failure to weigh properly the value of

exculpatory evidence collected by the DEA. But absolute immunity protects

prosecutors from liability when evaluating exculpatory evidence and performing a

“professional evaluation of the evidence assembled by the police,” as Hoffman did

here. See 

, 113 S. Ct. at 2615; 

.

Additionally, Hoffman’s alleged knowledge of Bonilla’s actual innocence is both a

legal conclusion and an “unwarranted deduction[] of fact[]” that will not prevent

dismissal. Oxford Asset 

.

      Hoffman also enjoys absolute immunity from Bonilla’s Bivens claims based

on her alleged Brady violations. Hoffman’s alleged failure to comply with Brady


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constitutes an exercise of her prosecutorial function and entitles her to absolute

immunity. See 

n.8. Indeed, when Hoffman told the DEA

to “stand down” and not disclose exculpatory wiretap evidence, allegedly in

violation of Brady, she was not performing an investigative function. See 

. Rather, Hoffman was performing a prosecutorial function, for

which she is absolutely immune. See 

n.8.

      Bonilla’s remaining allegations concerning Hoffman’s general prosecutorial

misconduct amount to nothing more than a claim for malicious prosecution, for

which absolute immunity attaches. 

. Accordingly,

Hoffman enjoys absolute immunity from Bonilla’s Bivens claims.

                               IV.   CONCLUSION

      In light of the foregoing, we affirm the district court’s dismissal of Bonilla’s

complaint.

      AFFIRMED.




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